IN THE MATTER OF B----, 6 IN Dec. 217 (BIA 1954)
IN THE MATTER OF B----. In VISA PETITION Proceedings.
VP 9-2350.Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice
Decided by Board July 20, 1954.
Status — Cancellation of naturalization procured under Act of Aug. 16, 1951 (P.L. 114, 82d Cong., 1st session) must be by formal revocation in accordance with section 338 of Nationality Act of 1940.
The United States citizenship of an individual naturalized under act of August 16, 1951 (P.L. 114, 82d Cong., 1st session) cannot be collaterally attacked on the ground that prior to naturalization she acquired Italian nationality through acquisition of Italian nationality by her father on July 1, 1914, and lost United States citizenship by failure to return to United States within two years after effective date of Nationality Act of 1940. Public Law 114 provides that illegal or fraudulent procurement of naturalization thereunder shall be subject to cancellation in same manner as provided in section 338 of Nationality Act of 1940 (court procedure for revocation of naturalization). In absence of formal revocation of naturalization, the individual is deemed to be a citizen of the United States and eligible to file a visa petition for nonquota status in behalf of her husband and minor children.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion: The matter comes forward on appeal from the order of the District Director, Chicago District, dated May 24, 1954, denying the visa petition on the ground that the petitioner is not a citizen of the United States and is not eligible to file a visa petition for nonquota status on behalf of her husband and minor children. The decision indicates that the petitioner acquired Italian nationality through the acquisition of Italian nationality by her father on July 1, 1914, and lost United States citizenship by failure to return to the United States within 2 years after the effective date of the Nationality Act of 1940.
A communication dated April 22, 1954, from the Department of State indicates that the petitioner voted in political elections held in Italy on April 18, 1948, and had not performed any other expatriating act. The communication sets forth that the petitioner was eligible for the benefits of the act of August 16, 1951 (Public Law 114, 82d Congress, 1st session) and was administered the oath of repatriation on January 11, 1952.Page 218
The act of August 16, 1951 (Public Law 114, 82d Cong., 1st sess.) provides that a person who, while a citizen of the United States, lost citizenship by reason of having voted in the political election or plebiscite held in Italy on June 2, 1946, or on April 18, 1948, and who had not subsequent to such voting committed any act which, had he remained a citizen would have operated to expatriate him, may be naturalized by taking an oath of repatriation before any naturalization court or before any diplomatic or consular officer of the United States abroad. The act further provides that the illegal or fraudulent procurement of naturalization thereunder shall be subject to cancellation in the same manner as provided in section 338 of the Nationality Act of 1940. Section 338 of the Nationality Act of 1940 provides a court procedure for revocation of naturalization.
It accordingly appears that the petitioner has been duly naturalized in accordance with the act of August 16, 1951 (Public Law 114) and that the attempt to collaterally attack or impeach this naturalization is ineffective inasmuch as Public Law 114 provides that the revocation of such naturalization must be in accordance with the provisions of section 338 of the Nationality Act of 1940. This section is the exclusive procedure for cancelling citizenship on the score of fraudulent or illegal procurement.[fn1] In the absence of any formal revocation of the outstanding order of naturalization of January 11, 1952, under Public Law 114, the petitioner must be deemed to be a citizen of the United States and eligible to file a visa petition.
Order: It is ordered that the visa petition be and the same is hereby approved for nonquota status on behalf of the beneficiaries.
[fn1] Bindczyck v. Finucane, 342 U.S. 76 (1951). Editor'sNote: See also sec. 402 (j) of the Immigration and Nationality Act (8 U.S.C. 1435 footnote) authorizing cancellation in the same manner as provided in section 340 of the Immigration and Nationality Act (8 U.S.C. 1451).Page 219